[Cite as State v. McKinney, 2013-Ohio-5394.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 13AP-211 

v. : (C.P.C. No. 11CR-6607)

Danny L. McKinney, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on December 10, 2013 

 

 

Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for 

appellee. 

R. William Meeks Co., LPA, and David H. Thomas, for 

appellant. 

 

APPEAL from the Franklin County Court of Common Pleas 

O'GRADY, J. 

{¶ 1} Defendant-appellant, Danny L. McKinney, appeals from a judgment of the 

Franklin County Court of Common Pleas convicting him of gross sexual imposition. For 

the following reasons, we affirm appellant's conviction. 

I. FACTUAL AND PROCEDURAL HISTORY 

{¶ 2} On December 20, 2011, appellant was indicted on four counts of rape, in 

violation of R.C. 2907.02, one count of gross sexual imposition, in violation of R.C. 

2907.05, and one count of disseminating matter harmful to juveniles, in violation of R.C. 

2907.31. The charges stemmed from events that purportedly happened when the victim, 

S.K., was five to six years old. 
No. 13AP-211 2 

{¶ 3} The jury ultimately found appellant guilty of gross sexual imposition and 

not guilty of the remaining charges. The trial court sentenced him to four years in prison 

and notified appellant of his classification as a Tier II sex offender. 

II. ASSIGNMENTS OF ERROR 

{¶ 4} On appeal, appellant presents this court with three assignments of error for 

review. 

Assignment of Error No. 1: The trial court abused its 

discretion and erred in overruling Appellant's motion for 

mistrial and permitting the prosecuting witness to testify via 

closed circuit television in absence of a timely motion, thereby 

violating § 2945.481 of the Ohio Revised Code and Appellant's 

right to a fair trial, right to due process of law, and right to 

confront witnesses against him, as guaranteed by the Fifth, 

Sixth, and Fourteenth Amendments to the United States 

Constitution, and comparable provisions of the Ohio 

Constitution. 

Assignment of Error No. 2: The trial court abused its 

discretion and erred in overruling Appellant's motion in 

limine and hearsay objection to the video recording of [S.K.] 

being interviewed by Jennifer Westgate being shown to the 

jury, thereby violating the evidentiary rules on hearsay and 

Appellant's right to a fair trial, right to due process of law, and 

right to confront witnesses against him, as guaranteed by the 

Fifth, Sixth, and Fourteenth Amendments to the United States 

Constitution, and comparable provisions of the Ohio 

Constitution. 

Assignment of Error No. 3: The trial court abused its 

discretion and erred in suppressing impeachment evidence 

showing that the alleged victim had made prior false 

accusations of rape and thereby violated § 2907.02 of the 

Ohio Revised Code and Federal Rule of Evidence 608(B) and 

Appellant's right to a fair trial, right to confront witnesses 

against him, as guaranteed by the Sixth and Fourteenth 

Amendments to the United Sates Constitution, and 

comparable provisions of the Ohio Constitution. 
No. 13AP-211 3 

III. DISCUSSION 

{¶ 5} In his first assignment of error, appellant contends the trial court erred by 

permitting S.K. to testify via closed-circuit television in the absence of a timely motion, in 

violation of R.C. 2945.481, and by overruling his motion for a mistrial. We disagree. 

{¶ 6} Initially, appellant complains the prosecution failed to file a motion for S.K. 

to testify via closed-circuit television at least seven days prior to trial as required by R.C. 

2945.481(C), and the prosecution failed to show good cause for the belated motion. 

Appellant also contends the trial court failed to inquire into the validity of the 

prosecution's excuse for the delay and make an explicit finding of good cause. Because 

appellant did not object on these grounds at the trial level, he has forfeited all but plainerror review. See Crim.R. 52(B). Under Crim.R. 52(B), "[p]lain errors or defects affecting 

substantial rights may be noticed although they were not brought to the attention of the 

court." For an error to be "plain" within the meaning of Crim.R. 52(B), it " 'must be an 

"obvious" defect in the trial proceedings.' " State v. Payne, 114 Ohio St.3d 502, 2007-

Ohio-4642, ¶ 16, quoting State v. Barnes, 94 Ohio St.3d 21, 27 (2002). To affect the 

defendant's substantial rights, the error must have " 'affected the outcome of the trial.' " 

Id., quoting Barnes at 27. A reviewing court notices plain error " 'with the utmost caution, 

under exceptional circumstances and only to prevent a manifest miscarriage of justice.' " 

Barnes at 27, quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the 

syllabus. "The burden of demonstrating plain error is on the party asserting it." Payne at 

¶ 17. 

{¶ 7} R.C. 2945.481(C) provides: 

In any proceeding in the prosecution of any charge of a 

violation listed in division (A)(2) of this section * * * the 

prosecution may file a motion with the judge requesting the 

judge to order the testimony of the child victim to be taken in 

a room other than the room in which the proceeding is being 

conducted and be televised, by closed circuit equipment, into 

the room in which the proceeding is being conducted to be 

viewed by the jury, if applicable, the defendant, and any other 

persons who are not permitted in the room in which the 

testimony is to be taken but who would have been present 

during the testimony of the child victim had it been given in 

the room in which the proceeding is being conducted. Except 

for good cause shown, the prosecution shall file a motion 
No. 13AP-211 4 

under this division at least seven days before the date of the 

proceeding. 

{¶ 8} This proceeding involved the prosecution of charges listed in R.C. 

2945.481(A)(2). The parties agree, and the record confirms, the prosecution did not file a 

motion for closed-circuit testimony at least seven days before trial. Instead, the 

prosecution made the motion at a hearing outside the jury's presence after S.K. expressed 

a desire to stop testifying during direct examination. The prosecution argued the state 

had good cause for the motion, explaining: 

I recognize that we did not file this motion within seven days 

of trial. This was not an issue that we had anticipated. We 

had met with [S.K.] multiple times prior to this. She's seen 

the courtroom. She had been in the courtroom. She was with 

us back in chambers or back in the conference room and there 

were no -- there was no way of knowing that this would be the 

reaction. 

(Tr. 102-03.) 

{¶ 9} Appellant argues that the prosecution made "conflicting statements" that 

show "their violation of procedure was due to their own lack of foresight and preparation." 

(Appellant's brief, at 13.) We disagree with this characterization. The statements merely 

imply on the multiple occasions when the prosecution met with S.K. she exhibited no 

behavior that led the prosecution to believe she would have difficulty testifying in open 

court. 

{¶ 10} Appellant is correct the trial court did not conduct further inquiry into the 

"good cause" issue and did not explicitly enter a "good cause" finding on the record. The 

record contains a reasonable explanation for the belated motion, and we see no reason for 

the trial court to disbelieve or make further inquiry into that explanation, particularly 

when defense counsel did not. Thus, appellant has failed to demonstrate the trial court 

erred when it permitted closed-circuit television testimony in the "absence of a timely 

motion." (Appellant's brief, at v.) 

{¶ 11} Next, appellant makes several arguments under his first assignment of error 

that are not pertinent to the assigned error. Under App.R. 12(A)(1)(b), an appellate court 

must "[d]etermine the appeal on its merits on the assignments of error set forth in the 
No. 13AP-211 5 

briefs under App.R. 16." "Thus, this court rules on assignments of error only, and will not 

address mere arguments." Ellinger v. Ho, 10th Dist. No. 08AP-1079, 2010-Ohio-553, 

¶ 70. Namely, appellant contends the trial court failed to make certain findings regarding 

the necessity of closed-circuit television testimony under R.C. 2945.481(E) and United 

States Supreme Court precedent and argues the record would not support such findings in 

any event. He also complains the trial court violated R.C. 2945.481(C) because it did not 

ensure S.K. could see appellant while she testified via closed-circuit television. However, 

the first assignment of error only challenges the timeliness of the prosecution's motion 

and the denial of a motion for mistrial. Accordingly, we address appellant's assignment of 

error as written and disregard his extraneous arguments. Bonn v. Bonn, 10th Dist. No. 

12AP-1047, 2013-Ohio-2313, ¶ 9. 

{¶ 12} Next, we address appellant's claim the trial court erred when it denied his 

motion for a mistrial. " 'A mistrial should not be ordered in a criminal case merely because 

some error or irregularity has intervened, unless the substantial rights of the accused or 

the prosecution are adversely affected.' " State v. Walburg, 10th Dist. No. 10AP-1087, 

2011-Ohio-4762, ¶ 52, quoting State v. Reynolds, 49 Ohio App.3d 27, 33 (2d Dist.1988). 

The trial court should only grant a mistrial "when a fair trial is no longer possible." State 

v. Moore, 10th Dist. No. 11AP-1116, 2013-Ohio-3365, ¶ 47, citing State v. Franklin, 62 

Ohio St.3d 118, 127 (1991). Our review of a decision on a motion for mistrial defers to the 

trial court's judgment because it is in the best position to determine whether the 

circumstances warrant declaration of a mistrial. State v. Glover, 35 Ohio St.3d 18, 19 

(1988). We thus review the trial court's decision for an abuse of discretion. Columbus v. 

Aleshire, 187 Ohio App.3d 660, 2010-Ohio-2773, ¶ 42 (10th Dist.), citing State v. Sage, 31 

Ohio St.3d 173, 182 (1987). An abuse of discretion exists when the trial court has an 

unreasonable, arbitrary or unconscionable attitude in reaching its decision. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219 (1983). 

{¶ 13} After the prosecution explained why it had good cause for the belated 

motion to have S.K. testify via closed-circuit television, defense counsel argued appellant 

might suffer "insurmountable" prejudice if the court granted the motion because "he's 

clearly going to be identified as the problem to the jury." (Tr. 103.) In other words, the 
No. 13AP-211 6 

jury would infer S.K. left the courtroom because appellant was guilty, and his presence in 

the courtroom upset her. Counsel requested a mistrial on this basis. 

{¶ 14} The trial court overruled the motion and found a limiting instruction was 

sufficient to cure any potential for prejudice. The judge explained the closed-circuit 

process to the jury and gave the following instruction: 

Now, I'm going to caution you that you are not to interpret 

what we're doing or the way that this has come about, taking 

the testimony in this way. You are not to interpret this in any 

way whatsoever either for or against the witness or for or 

against the Defendant. What we're doing here is expressly set 

forth in Ohio law and it is taken to expressly preserve and 

protect everyone's rights. So you would determine, you are to 

determine the credibility of the witness just as you would the 

credibility of any other witness and you are not in any way 

whatsoever to make any inference as to the Defendant or as to 

the State of Ohio. 

(Tr. 121.) Then the court asked the jurors whether any of them felt they could not comply 

with this instruction, and the jurors all responded "No." (Tr. 122.) 

{¶ 15} We presume a jury follows the instructions of the court, so we presume the 

jurors followed the court's limiting instruction. State v. Shipley, 10th Dist. No. 12AP-948, 

2013-Ohio-4055, ¶ 62. Appellant's mere belief that the risk of prejudice was too high for 

an instruction to negate it is not sufficient to overcome this presumption. The fact the 

jury found appellant not guilty on four of the five charges suggests it followed the court's 

instructions and did not simply infer appellant was guilty because of the switch to closedcircuit television. Thus, we find the trial court's decision to deny the motion for mistrial 

based on prejudice to appellant was not unreasonable, arbitrary or unconscionable. 

{¶ 16} Appellant suggests the trial court abused its discretion because it denied the 

motion for a mistrial even though the prosecution did not move for closed-circuit 

testimony at least seven days before trial and lacked good cause for the belated motion. 

But appellant never moved for a mistrial based on the "good cause" issue and does not 

assign as error the court's failure to sua sponte grant a mistrial for this reason. Again, we 

rule on "assignments of error only, and will not address mere arguments." Ellinger at 

¶ 70. And, in any event, we already determined the record supports the court's implicit 
No. 13AP-211 7 

finding that the state had good cause for the belated motion. Thus, we overrule the first 

assigned error. 

{¶ 17} In his second assignment of error, appellant asserts the trial court abused its 

discretion and erred when it overruled his motion in limine and hearsay objection to the 

prosecution playing a recording of an interview of S.K. for the jury, in violation of 

evidentiary rules and his constitutional rights. 

{¶ 18} Ordinarily, we review a trial court's decision regarding the admission of 

evidence for an abuse of discretion. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio2815, ¶ 62. Thus, our inquiry is limited to determining whether the trial court acted 

unreasonably, arbitrarily or unconscionably in deciding the evidentiary issue. Id. 

{¶ 19} Jennifer Westgate, a medical forensic interviewer at Nationwide Children's 

Hospital, conducted a recorded interview of S.K. In a motion in limine, appellant 

generally argued that the entire interview constituted inadmissible hearsay and that, if 

played for the jury, it would violate his Sixth Amendment Confrontation Clause rights. In 

its response, the state argued the exception to the hearsay rule in Evid.R. 803(4) on 

statements for purposes of medical diagnosis or treatment applied, and the Confrontation 

Clause did not bar the statements. Presumably, the trial court agreed with the state's 

position because it denied the motion in limine. Appellant renewed his objection to the 

interview before the prosecution played it for the jury. 

{¶ 20} On appeal, appellant argues for the first time that the state could not play 

the recording for the jury because S.K. was available and, in fact, testified at trial. Because 

appellant did not object at the trial level on these grounds, he has again forfeited all but 

plain-error review. See Crim.R. 52(B). Appellant attempts to analogize this case to our 

decision in State v. Presley, 10th Dist. No. 02AP-1354, 2003-Ohio-6069. In Presley, we 

reversed the trial court's decision to permit the state to introduce evidence of a diagram 

the victim drew and statements she made about it to a detective with the Columbus Police 

Department. In reaching this decision, we stated: "In general, although 'some hearsay 

statements are admissible in criminal proceedings,' such statements are admissible only 

when, 'after a good faith effort by the prosecution to produce her, the declarant is 

unavailable to testify.' " Presley at ¶ 24, quoting State v. Self, 56 Ohio St.3d 73, 81-82 

(1990). 
No. 13AP-211 8 

{¶ 21} Appellant's reliance on Presley is misplaced. Unlike in our case, the victim's 

statements in Presley were not offered for purposes of medical diagnosis or treatment. 

The availability of the declarant is immaterial under this hearsay exception. Evid.R. 

803(4); State v. Dever, 64 Ohio St.3d 401, 414 (1992). In addition, "[t]he admission of 

hearsay does not violate the Confrontation Clause if the declarant testifies at trial." State 

v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 64, citing California v. Green, 399 U.S. 

149, 155 (1970), and State v. Keenan, 81 Ohio St.3d 133, 142 (1998). And, because S.K. 

testified at trial and was subject to cross-examination, the Confrontation Clause did not 

bar admission of her statements to Westgate. 

{¶ 22} Next, appellant challenges certain exchanges from S.K.'s interview. 

Appellant argues they served an investigative, rather than a medical, purpose. He did not 

make a specific challenge to these statements at the trial level; again, he attacked the 

interview as a whole. Regardless, to the extent appellant's argument implicates the 

Confrontation Clause, we already determined that clause did not bar admission of any of 

S.K.'s interview statements. 

{¶ 23} To the extent appellant's challenges implicate Evid.R. 803(4), which 

appellant never cites, his argument likewise fails. Several of the specific exchanges 

appellant references, such as S.K.'s claim that appellant told her to keep his conduct 

secret, were cumulative of other, properly admitted testimony. Thus, to the extent those 

exchanges were potentially not for medical diagnosis or treatment and admissible under 

Evid.R. 803(4), we find any error in their admission harmless. In re C.S., 10th Dist. No. 

11AP-667, 2012-Ohio-2988, ¶ 21. Statements S.K. made about viewing pornography, in 

addition to being cumulative of other evidence, also appear to have not impacted the jury 

as it found appellant not guilty of disseminating matter harmful to a juvenile. 

Accordingly, we overrule the second assignment of error. 

{¶ 24} Finally, in his third assignment of error, appellant contends the trial court 

"abused its discretion and erred in suppressing impeachment evidence showing that the 

alleged victim had made prior false accusations of rape," in violation of R.C. 2907.02, 

Evid.R. 608(B), and various constitutional rights. (Appellant's brief, at v.) However, in 

his argument, appellant does not elaborate on his constitutional claims. Therefore, we 

only address appellant's evidentiary and statutory argument. 
No. 13AP-211 9 

{¶ 25} "Preliminary questions concerning * * * the admissibility of evidence shall 

be determined by the court * * *. In making its determination it is not bound by the rules 

of evidence except those with respect to privileges." Evid.R. 104(A). We review a court's 

ruling on the admissibility of evidence for an abuse of discretion. State v. Myers, 153 

Ohio App.3d 547, 2003-Ohio-4135, ¶ 64 (10th Dist.). 

{¶ 26} Appellant filed a pre-trial motion claiming the victim had made "several 

allegations of false sexual activity that have been found to be totally unfounded." (R. 55.) 

Counsel requested a hearing under R.C. 2907.02 and State v. Boggs, 63 Ohio St.3d 418 

(1992), to resolve the admissibility of evidence related to these accusations. Before trial 

began, defense counsel told the court: 

Through the course of my investigation I've learned that the 

alleged victim in this case has also made accusations, prior 

accusations that her uncle, her paternal uncle [E.K.], had 

inappropriately touched her. And part of that accusation is 

evidenced in the interview of the detective of the mother and 

father of the alleged victim by the detective. 

(Tr. 22.) 

{¶ 27} In response, the prosecutor stated: 

I believe what [defense counsel] is referring to is the child at 

age of three may have said something to mom about 

somebody else touching her. Nothing was ever done. There 

was no investigation. There was nothing. And that's not a 

prior false allegation. Nothing was looked into. So we don't 

even have an allegation really to even look into at this point. 

(Tr. 24-25.) 

{¶ 28} Later, defense counsel admitted the only thing S.K.'s father said that 

prompted the false-allegations argument was a statement that, "Children Services were 

called twice against me regarding my brother from them." (Tr. 26.) The prosecutor later 

stated the father said someone made an anonymous call to Children Services saying his 

brother had touched S.K. Then, defense counsel claimed S.K.'s mother "admitted to other 

witnesses that her daughter did make the allegation against [E.K.] and that she lied about 

it." (Tr. 29.) The court did not permit counsel to question the victim or her parents about 

any false allegations the victim made in camera or at trial. 
No. 13AP-211 10 

{¶ 29} On appeal, appellant contends "[t]he Ohio Supreme Court has held that an 

in camera hearing is required to determine whether an alleged rape victim may be crossexamined on prior false accusations of rape. State v. Boggs, 63 Ohio St.3d 418 (1992)." 

(Appellant's brief, at 30.) He argues the trial court must first "determine if there were 

prior false accusations that can be used for impeachment purposes on crossexamination." (Appellant's brief, at 31.) He complains that, "[d]espite the mandatory 

requirement for an in camera hearing, the trial court judge overruled defense counsel's 

motion in limine and excluded the prior false accusation's [sic] of [S.K.] without having an 

in camera hearing of any of the witnesses aware of the false accusations, including [S.K.] 

herself." (Appellant's brief, at 31-32.) Appellant suggests Boggs and R.C. 2907.02 require 

the court to hear such testimony. Appellant argues the trial court improperly found S.K. 

incompetent to testify about "her prior false accusations of rape" due to her age when they 

occurred without asking her a single question about them. (Appellant's brief, at 32.) He 

also complains the trial court violated Evid.R. 608(B) when it refused to let him ask S.K.'s 

parents about their knowledge of the accusations in camera or at trial. 

{¶ 30} R.C. 2907.02 provides: 

(D) Evidence of specific instances of the victim's sexual 

activity, opinion evidence of the victim's sexual activity, and 

reputation evidence of the victim's sexual activity shall not be 

admitted under this section unless it involves evidence of the 

origin of semen, pregnancy, or disease, or the victim's past 

sexual activity with the offender, and only to the extent that 

the court finds that the evidence is material to a fact at issue in 

the case and that its inflammatory or prejudicial nature does 

not outweigh its probative value. 

* * * 

(E) Prior to taking testimony or receiving evidence of any 

sexual activity of the victim or the defendant in a proceeding 

under this section, the court shall resolve the admissibility of 

the proposed evidence in a hearing in chambers, which shall 

be held at or before preliminary hearing and not less than 

three days before trial, or for good cause shown during the 

trial. 

{¶ 31} Evid.R. 608(B) provides: 
No. 13AP-211 11 

Specific instances of the conduct of a witness, for the purpose 

of attacking or supporting the witness's character for 

truthfulness, other than conviction of crime as provided in 

Evid. R. 609, may not be proved by extrinsic evidence. They 

may, however, in the discretion of the court, if clearly 

probative of truthfulness or untruthfulness, be inquired into 

on cross-examination of the witness (1) concerning the 

witness's character for truthfulness or untruthfulness * * *. 

{¶ 32} Appellant's arguments do not correlate with the assigned error. In his 

assignment of error, appellant alleges the lower court "abused its discretion and erred in 

suppressing impeachment evidence showing that the alleged victim had made prior false 

accusations of rape." (Appellant's brief, at v.) However, the court took no such action. 

Defense counsel presented the court with no evidence that S.K. made accusations of rape 

or other sexual activity against someone other than appellant, let alone false ones. 

Counsel did not provide the court with S.K.'s father's statement to police. Even if counsel 

had, at best, it appears the father said an anonymous person made a complaint to 

Children Services about S.K.'s uncle "touching" her. It is unclear whether this "touching" 

was even sexual in nature. In addition, defense counsel admitted he never spoke to S.K.'s 

mother, and counsel never identified the alleged witnesses whom the mother purportedly 

told S.K. fabricated an allegation against her uncle. Thus, it is clear the court did not 

"suppress" impeachment evidence that showed the victim made prior false accusations of 

rape, as appellant did not offer such evidence. 

{¶ 33} In essence, appellant complains the court did not permit him to search for 

evidence of false accusations of rape through in camera questioning of S.K. and her 

parents. R.C. 2907.02 does not compel the court to do so. Moreover, under Evid.R. 

608(B), a party generally cannot prove by extrinsic evidence specific instances of the 

conduct of a witness for the purpose of attacking the witness's character for truthfulness. 

Although Evid.R. 608(B) did not impede the court's ability to hear extrinsic evidence at an 

in camera hearing,1 it also did not compel the court to make the victim and parents testify 

during such a hearing. And, the court correctly ruled that appellant could not ask S.K.'s 

mother or father during trial about whether S.K. lied about a sexual encounter with her 

 

1 Evid.R. 104(A). 
No. 13AP-211 12 

uncle to impeach S.K. Such evidence would constitute inadmissible extrinsic evidence 

under Evid.R. 608(D). Although appellant argues he could have impeached S.K.'s parents 

with evidence related to her false allegations, that argument amounts to nothing more 

than speculation. 

{¶ 34} Finally, we address appellant's Boggs argument. In Boggs, the trial court 

conducted a rape shield hearing before trial but defense counsel did not raise the issue of 

prior false rape accusations at the hearing. Boggs at 419. During trial, defense counsel 

asked the victim on cross-examination "about prior false accusations of rape." Id. "In 

response to an immediate objection, defense counsel stated that he possessed evidence 

that the victim had, on a prior occasion, falsely accused a man other than the defendant of 

raping her." Id. The trial court sustained the objection; "there was therefore no answer 

to the question concerning prior false rape accusations." Id. The court of appeals 

reversed and remanded, finding the trial court erroneously restricted cross-examination 

of the victim and the rape shield statute did not exclude evidence of prior false rape 

accusations. Id. 

{¶ 35} On appeal, the Supreme Court of Ohio framed the issue before it as 

"whether the rape shield provisions of R.C. 2907.02(D) prohibit a defendant from crossexamining an alleged rape victim about prior false rape accusations she is alleged to have 

made." Id. at 420. The Supreme Court held:

1. Evid.R. 608(B) allows, in the trial court's discretion, crossexamination on specific instances of conduct "if clearly 

probative of truthfulness or untruthfulness." In certain 

instances it is within the discretion of the trial court to permit 

cross-examination of a rape victim as to prior false 

accusations of rape. 

2. Where an alleged rape victim admits on cross-examination 

that she has made a prior false rape accusation, the trial judge 

shall conduct an in camera hearing to ascertain whether 

sexual activity was involved and, as a result, crossexamination on the accusation would be prohibited by R.C. 

2907.02(D), or whether the accusation was totally unfounded 

and therefore could be inquired into pursuant to Evid.R. 

608(B). 

Id. at paragraphs one and two of the syllabus. 
No. 13AP-211 13 

{¶ 36} The Boggs court found: 

In the present case, an in camera hearing was held but no 

inquiry was made as to the nature of the prior accusation, that 

is, whether the prior accusation was based on sexual activity 

or was totally unfounded. Since no testimony concerning the 

alleged prior false rape accusation was admitted, and none 

was received during the rape shield hearing conducted before 

trial, we cannot, on this record, determine whether the 

evidence offered by the defense was properly excluded as 

involving sexual activity and thus protected by the rape shield 

statute. Moreover, the trial judge must in the first instance 

determine whether the accused has met his burden of 

establishing that the victim's prior accusations were clearly 

unfounded. We therefore remand this case to the trial court to 

conduct an in camera hearing consistent with this opinion to 

make the necessary determinations. 

Id. at 424. 

{¶ 37} We do not read Boggs to mandate trial courts to permit in camera 

questioning of the victim and other state's witnesses regarding alleged false accusations of 

sexual activity in the complete absence of evidence the victim even made an accusation. 

The purpose of a Boggs hearing is for the trial court to determine the extent of crossexamination, not for a defendant to gather impeachment evidence in the first instance. 

Thus, we reject appellant's contention that the trial court violated Boggs. See generally

State v. Delozier, 10th Dist. No. 94APA02-250 (Nov. 17, 1994) (finding no error under 

Boggs in trial court's decision to prohibit testimony about victim's alleged false allegation 

of sexual abuse by her mother's husband where counsel did not present evidence to 

indicate counsel had anything to substantiate the existence of the allegation other than 

hearsay). We overrule the third assignment of error. 

IV. CONCLUSION 

{¶ 38} Having overruled appellant's three assignments of error, we affirm the 

judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

BROWN and CONNOR, JJ., concur.